Further Thoughts on the Court's Refusal to Hear the Guantánamo Detainee Appeals

Guest Blogger

Jonathan HafetzLitigation Director, Brennan Center for Justice

The Supreme Court this week narrowly declined to hear the habeas appeals of the Guantánamo detainees.The detainees had sought review of the D.C. Circuit's decision detainees in Boumediene v. Bush and Al Odah v. United States, upholding the jurisdiction-stripping provisions of the Military Commissions Act of 2006 (MCA). In a joint statement respecting the denial of certiorari, Justices Stevens and Kennedy explained that the detainees should first exhaust their remedies in the D.C. Circuit available under the Detainee Treatment Act of 2005 (DTA). It is too early to assess the long-term impact of the certiorari denial and, as Marty Lederman points out in his excellent summary similar challenges are expected to reach the Court through DTA petitions.Still, the Court's refusal to hear the cases provides a window into some troubling legacies of the Guantánamo detainee litigation.

Nearly three years have passed since the Court handed down Rasul v. Bush, ruling that Guantánamo detainees have the right to habeas relief and directing district courts to consider their petitions in the first instance.Though the Court also suggested in Hamdi v. Rumsfeld, decided the same day as Rasul, that a lawfully constituted military tribunal might provide this inquiry in the narrow circumstances of a traditional combatant captured on an actual battlefield (citing, for example, standard hearings provided under U.S. army regulations), where no such process was provided, habeas was expected to fill in the gap.Yet, Rasul has become an increasingly distant memory: as much time has passed since Rasul as between Rasul and the arrival of Guantánamo's first prisoners in January 2002.And still no detainee has had anything approaching his day in court.

It is difficult to see a principled basis for exhaustion, especially after more than five years of detention without charge.As the dissent from the certiorari denial explained, the D.C. Circuit has already held that the detainees have no constitutional rights, period.So, until that ruling is reversed by the Court, the underlying Combatant Status Review Tribunal (CSRT) process that the D.C. Circuit reviews under the DTA need not comply with basic constitutional safeguards, including the right to see the government's evidence, to the assistance of counsel, to be free from detention based on evidence gained through coercion, and to compel production of exculpatory evidence.

The Court's refusal to hear the detainee cases highlights the continuing absence of meaningful review in the new system of indefinite executive detention that has taken root in the so-called "war on terror."The CSRT, recall, was concocted nine days after Rasul to help avert district court hearings. It is so deeply flawed that it would pose a challenge for any court to uphold under even a crimped due process analysis. (Since the D.C. Circuit found the detainees had no Fifth Amendment rights, it was relieved from having to try.).The DTA and MCA, in turn, sought to eliminate the basis for those hearings under the habeas statute, described in Hamdi as providing a "skeletal outline" for adjudicating the factual and legal basis for a prisoner's confinement.What habeas provides – and what the administration most fears – is the possibility that a federal judge will examine whether a detainee is actually an "enemy combatant" (even under the CSRT's virtually limitless definition), an inquiry that, in many cases, would require assessing whether any statements were wrung by coercion from the petitioner or from another detainee.

The Court's refusal to hear appeals in Boumediene and al Odah, then,marks merely the latest chapter in the United States' ongoing failure to provide a fair and lawful process to those it imprisons. It is this failure that has made Guantánamo a lightening rod for criticism and prompted calls for its closure at home and abroad. (Matters reached a new low in recent weeks with the nakedly political deal struck in the David Hicks case, the first "conviction" by Guantánamo's military commission, and by the release of CSRT records redacting allegations of torture in the name of "national security"). To be sure, the courthouse doors still remain open to the Guantánamo detainees. But it is difficult to see what it is to be gained by subjecting detainees to more delay and to a process intended, as one MCA supporter put it, to "get the lawyers out of Guantanamo."Guantánamo was designed by the Executive to create a prison beyond the law.The record of the other two branches in coming to grips with the fall-out from this ill-advised decision has been disappointing at best, resulting in the human rights debacle that Guantánamo has come to symbolize.

I just wonder if any of the Professors think that the German and Italian soldiers we held on our soil during WW2 had a right to habeus corpus to challenge their detention because they were being detained on sovereign US soil.

If not, how can you make a meaningful legal distinction between the two? And how can a distinction really be made because the same values that point in favor of a habeus challege for detainees also point in favor for a habeus challenge for POWs.

If so, doesn't that show the farcical nature of the claim? If we ever have another large scale war that involves the capture of tens or hundreds of thousands of enemy POWs and keep them on American soil, then these thousands are entitled to thousands of lawyers and evidentiary hearings disputing their status?

I suggest that the "farcical" situation is what we have today, because the government will not move the detainees to the United States and forthrightly face the very habeas question you pose. AFAIK, the Bush administration has never claimed that an alleged combatant per se is beyond habeas review. Rather, it hides behind the unique geography of Guantanamo.

So a variant of the your "farcical" hypothetical is that in the event of a large-scale conflict with many thousands of prisoners, is Guantanamo the only place they could be housed?

In fact, it is not even in the interests of a conventional soldier captured in wartime to dispute his combatant status. His interest is in claiming POW status under Geneva. So the absurd situation you suggest would not obtain.

The distinguishing feature of the detainees today is that they are not conventional, uniformed combatants, and to the extent they are able many do deny that they are combatants at all.

As the dissent from the certiorari denial explained, the D.C. Circuit has already held that the detainees have no constitutional rights, period. So, until that ruling is reversed by the Court, the underlying Combatant Status Review Tribunal (CSRT) process that the D.C. Circuit reviews under the DTA need not comply with basic constitutional safeguards, including the right to see the government's evidence, to the assistance of counsel, to be free from detention based on evidence gained through coercion, and to compel production of exculpatory evidence.

Perhaps I missed it, but where did the Boumediene v. Bush opinion hold that the detainees have no constitutional rights under the 5th and 6th Amendments? The only holding I read stated that the implied constitutional right to habeas corpus does not geographically reach Gitmo.

"The Court's refusal to hear appeals in Boumediene and al Odah, then, marks merely the latest chapter in the United States' ongoing failure to provide a fair and lawful process to those it imprisons AND TORTURES."

HLS, I suggest that the "farcical" situation is what we have today, because the government will not move the detainees to the United States and forthrightly face the very habeas question you pose. AFAIK, the Bush administration has never claimed that an alleged combatant per se is beyond habeas review. Rather, it hides behind the unique geography of Guantanamo.

Given the applicable history HLS provides that habeas corpus has never been extended to prisoners of war, the Justice's failure to argue a per se rule does seem farcical.

In fact, it is not even in the interests of a conventional soldier captured in wartime to dispute his combatant status. His interest is in claiming POW status under Geneva. So the absurd situation you suggest would not obtain.

Why not? The status being sought by the Gitmo detainees is that of civilian non-combatant so they can be released. Why would an enemy lawful combatant not want to convince some court that he was a civilian so he to could be freed?

The distinguishing feature of the detainees today is that they are not conventional, uniformed combatants, and to the extent they are able many do deny that they are combatants at all.

This is nothing new. During WWII, we sent combatants dressed in civilian clothing behind enemy lines to kill Germans and sabotage the infrastructure. They were routinely and legally executed when captured. No trials and no habeas corpus.

What is new is this radical departure from the law of war attempting to extend the rights of civilian criminal defendants to POWs.

I think JaO gets this point exactly right. Despite whatever arguments the government makes to the contrary, guspected terrorists are either covered as POWs under the Third Geneva Convention, or as civilians under the Fourth Geneva Convention. Suspected terrorists who are not given POW status by the detaining power, but who want to claim that status anyway, are presumptively due that status until it is determined that they affirmatively are not. Joseph Blocher, “Combatant Status Review Tribunals: Flawed Answers to the Wrong Question,” 116 YALE L.J. 667, 668 (2006).

Moreover, HLS, Quirin is the only case I can think of where German soldiers were held on US soil, so please cite to other cases unless you're just making up a hypothetical. “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. The detainees in that case affirmatively had the right to habeas review (even if not the writ itself) to challenge their detention in front of a court. So, yes, "German and Italian soldiers we held on our soil during WW2 had a right to habeas corpus to challenge their detention because they were being detained on sovereign US soil." And if you don't believe me because I'm not one of the contributors to this blog, see Marty Lederman's comment here where he argues, "As for whether constitutional habeas protects alleged enemy aliens, well, they were entitled to such habeas in Quirin and Yamashita; in both cases, the Court rejected the government's argument that the alleged enemy aliens had no habeas right to get into court."

During WWII, we sent combatants dressed in civilian clothing behind enemy lines to kill Germans and sabotage the infrastructure. They were routinely and legally executed when captured. No trials and no habeas corpus.

Bart, it is dangerous to start taking your cues on what process is due to enemy combatants from the Third Reich. Is that the direction you really want the U.S. justice system to go?

Bart: Why would an enemy lawful combatant not want to convince some court that he was a civilian so he to could be freed?

Well, theoretically he might. But he would need convincing evidence. That would not be feasible for the thousands of German and Italian soldiers, presumably captured in uniform and under arms, who were the subject of HLS's hypothetical to which I was responding.

1) A soldier captured in uniform who gives name, rank, and serial number is entitled to POW status in military detention. [example: about a half million axis prisoners in WWII]

2) A soldier captured out of uniform pretending to be a civilian commits an offense against the laws of war. Quirin notes that he may be detained by the military, but in addition he may be tried for his offense. [example: the 10 German saboteurs during WWII]

3) A civilian acting as an agent of the enemy military who attempts to cross lines of defense in civilian clothes for the purpose of gathering intelligence or conducting sabotage is also a military Spy covered by Quirin. In this special case, the "attempt to cross lines of defense" covers civilians, but only when they are on a military mission assigned to them by military commander. Since in every prior war such people would have been tried as spies, this special case falls through to the next category.

4) Civililans associated with an enemy army can be detained by the military if they commit an offense (such as engaging in combat). The civilian truck driver who delivers supplies to an enemy unit is typically not subject to detention. [example: possibly everyone at Gitmo depending on interpretations of US legal claims]

People have been held "five years without any charges." If the government admitted that al Qaeda and Taliban detainees are soldiers (albeit captured out of uniform) then nobody would expect charges, any more than POWs during WWII. However, since the government asserts that no al Qaeda detainees are soldiers, and disputes the status of the Taliban, then it is reasonable to ask where are the charges that justify holding these civilians.

If the enemy are soldiers, then one must accept the possibility that some day we will encounter an al Qaeda in uniform who gives name, rank, and serial number. Thus POW status is not out of the question. If they are civilians, then they are entitled to more process than they have been provided. If they are something else, then the government should say what it is in sufficient detail that we know what they mean. Five years without charges may or may not be an issue, but five years without an explanation or justification is a bigger problem.

Despite whatever arguments the government makes to the contrary, guspected terrorists are either covered as POWs under the Third Geneva Convention, or as civilians under the Fourth Geneva Convention. Suspected terrorists who are not given POW status by the detaining power, but who want to claim that status anyway, are presumptively due that status until it is determined that they affirmatively are not.

The Geneva Conventions provide definitions for POWs and civilians. These definitions do not cover combatants who are not following the laws of was as laid out in the Geneva Conventions definition of POWs.

If you do not fall under one of those definitions, you do not fall under the protections granted those statuses. I am unaware of any provision of the Geneva Convention which presumes a capture qualifies as a POW unless otherwise found. Can you cite to such a provision?

The detainees in [Qurin] affirmatively had the right to habeas review (even if not the writ itself) to challenge their detention in front of a court. So, yes, "German and Italian soldiers we held on our soil during WW2 had a right to habeas corpus to challenge their detention because they were being detained on sovereign US soil."

This is incorrect. The Quirin petitioners were not challenging their status as POWs. The Qurin court granted these petitioners habeas review based on the fact that the government had tried them for crimes under a US military commission. In effect, the government brought these enemy belligerents under habeas corpus by bringing them into a criminal legal proceeding.

Bart DePalma said: During WWII, we sent combatants dressed in civilian clothing behind enemy lines to kill Germans and sabotage the infrastructure. They were routinely and legally executed when captured. No trials and no habeas corpus.

Bart, it is dangerous to start taking your cues on what process is due to enemy combatants from the Third Reich. Is that the direction you really want the U.S. justice system to go?

Actually, it was the US legal system at Nuremberg which is being implicated here. The Germans were not prosecuted for executing our unlawful combatants in the OSS and Jedburgh Teams because no law of war was violated in doing so.

I have posted instances where the US executed unlawful enemy combatants. The point of this example is to show what is good for the goose is good for the gander.

I agree that the government should force the issue. Regardless of my feelings, the whole Guatanamo situation just hurts (in a myriad of ways) more than it can possibly help.

The point of my previous point concerns the classification of an individual as a POW during an actual war.

Who makes that determination? The executive through the military.

Who has the final authority on this? The executive again.

A individual designated as a POW has no way of challenging his classification in our domestic courts through a writ of habeas corpus.

However, all the same concerns over whether an individual is properly designated an "(unlawful) enemy combat" in our current situation, apply to whether an individual has been properly designated by the executive branch as a POW (in an actual war).

If an (unlawful) enemy combatant can challenge his status in civilan courts, why shouldn't a POW? I can't see any meaningful legal distinctions that require this difference in the arguments put forth by those who argue the Writ should afforded to (unlawful) enemy combatants.

Put a different way, the policy rationales put forward by those who favor extending habeas to (unlawful) enemy combatants appear to apply with equal force to executive determinations that an individual is a POW.

Side Note to Hip Cat Hobbes:You are wrong about Quirin (if I am getting your point correctly)

Quirin does not state that the courts have the power to determine the legal status of an enemy combatant. It only decides the question of whether the executive branch had the power to make that determination.

Quirin specifically states, "... after hearing argument of counsel and after full consideration of all questions raised, this Court affirmed the orders of the District COurt and denied petitioners' applications for leave to file petitions for habeas corpus." 317 U.S. 1, 20 (1942) Insofar as Marty's comment goes against this, he is wrong by the plain text of the decision.

Side, Side Note: It just annoys me that people just don't have basic common knowledge. Everyone (should) knows that there were numerous German and Italian POWs on American soil during WW2. But, evidently, you don't. So, after a waste of my time, here is a link.http://www.crt.state.la.us/tourism/lawwii/courier_articles/pows.htm

It says there were roughly 500,000 German and Italian POWs in the States.

http://en.wikipedia.org/wiki/List_of_POW_camps_in_the_United_StatesWiki says there were over 425,000.

Helpful Hint: There seems to be some confusion over two questions. 1. Whether the executive has the Constitutional/statutory authority to determine whether someone is a POW or unlawful enemy combatant, and2. Challening the executive's determination that someone is a POW or unlawful enemy combatant.

They are two seperate and distinct questions. Confusion can be avoided if these distinctions are kept in mind.

Bartr: I am unaware of any provision of the Geneva Convention which presumes a capture qualifies as a POW unless otherwise found. Can you cite to such a provision?

Yes. Article 5:

Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

So, if the prisoner questions their status prior to a tribunal, they are protected. If a tribunal finds that they are not covered, they (under the MCA) can appeal that to the DC circuit, and then beyond to SCOTUS. I would argue that they are protected until all avenues of resolving "any doubt" have been exhausted. ;)

@HLS: I don't think Hobbes was saying he didn't know of any other POWs on soil, but any other legal cases where such POWs asked for habeas review.

all the same concerns over whether an individual is properly designated an "(unlawful) enemy combat" in our current situation, apply to whether an individual has been properly designated by the executive branch as a POW (in an actual war).

Not really. It's true that in each case the Administration makes a decision, but the consequences are very different in the two cases. If someone is designated a POW, that provides certain rights, including the right to challenge the designation. It also mandates certain treatment standards, standards which we are NOT providing at Guantanamo.

It is the consequences which the Administration imposes on the detainees which leads to the demand for habeas relief. Those consequences are not appropriate for POWs, so the superficial resemblance of executive decision-making is irrelevant.

Quirin does not state that the courts have the power to determine the legal status of an enemy combatant. It only decides the question of whether the executive branch had the power to make that determination.

Quirin specifically states, "... after hearing argument of counsel and after full consideration of all questions raised, this Court affirmed the orders of the District COurt and denied petitioners' applications for leave to file petitions for habeas corpus." 317 U.S. 1, 20 (1942) Insofar as Marty's comment goes against this, he is wrong by the plain text of the decision.

No, the Court in Quirin specifically held that it had the power to determine if the petitioners actually were "enemy combatants":

"[The Government] also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission. Emphasis added.

"Suspected terrorists who are not given POW status by the detaining power, but who want to claim that status anyway, are presumptively due that status until it is determined that they affirmatively are not."

Problem is, there is no example of such a person in the current detainee population. This is relatively simple. When captured, you give some version of name, rank, and serial number and assert your rights under the Geneva Convention. Every time anyone asks you anything, you do it again. When you go before the CSRT, you do it again. Only, so far it hasn't happened.

Wearing a uniform and carrying the ID card required by the Geneva Convention may be acceptable alternatives to speaking. However, if you have no uniform, no ID card, and you say nothing or deny your status then you are not and never can be a POW. You cannot deny your status when captured and then years later change your mind. When your status is not and cannot be in dispute, there is no need for an Article 5 tribunal. An affirmative decision that your are not a POW is only required after you affirmatively and consistently assert that you are.

HLS: I agree that the government should force the issue. Regardless of my feelings, the whole Guatanamo situation just hurts (in a myriad of ways) more than it can possibly help. ...

A individual designated as a POW has no way of challenging his classification in our domestic courts through a writ of habeas corpus.

The second assertion is your own, very far from settled law, and actually contrary to the way the D.C. Circuit and the Supreme Court have read centuries-old common law precedent (which has been well-aired in this blog here). You are free to argue it in the abstract, of course, and perhaps you can convince Paul Clement to adopt it as the government's position.

In any event, it begs the question that might be finally adjudicated if "the government should force the issue," as I am glad to see you think it should.

Unfortunately, this administration's entire approach to legal controversies is to avoid judicial review. Thus, it will keep Guantanamo as a law-free zone as long as possible while it runs out the clock.

Perhaps you will join me in the petitioning to close Guantanamo and resolve the issue forthrightly in court: Mister President, tell it to the judge.

I respect you a lot on this board. So, I ask you to reread my post and your response to my point about Quirin.

The portion you cite, including the bolded portion only further support my point.

It doesn't say the court is extending Habeas Corpus to examine the determination itself, made by the President. The opinion only goes to the question of whether the President has the Constitutional authority to make his determinations (and the consequences thereof) and concludes he does.

It is especially difficult to draw out at habeas inference from the passage that you cite, when my passage specifically states it is denying the Germans leave to file habeas corpus petitions.

As to your first point, yes, the consequences are important, but they only take us so far. For either POWs or detainees, both suffer if wrongly held. The POWs could theoretically be held for years and years -- as long as the war lasts. Of course, POWs who adhere to the laws of war can't be tried, but under either situtation, both groups (POWs and detainees) stand to lose a lot under a wrong determination. The fact that one can suffer longer imprisonment or trial doesn't change the nature of the inquiry.

I just wonder if any of the Professors think that the German and Italian soldiers we held on our soil during WW2 had a right to habeus corpus to challenge their detention because they were being detained on sovereign US soil.

First you'd have to posit that there were some that wanted to challenge such a designation. Absent that factual predicate, the current situation is one of first instance.

I've presented arguments and caselaw for the proposition that POWs can't challenge their determination as a POW. They can only (and rarely it seems) challenge the Constitutionality/legality of the President's ability to make such determinations in particular situations, for example, Ex Parte Quiring. As I explained, they court specifically rejected their request to file a habeas petitition. The Court instead only allowed argument over whether the President was within his power to say that the Germans were not entitled to POW protection.

I think an authority/determination distinction defines it well (but I'm not entirely positive its the best way to characterize it).

First, I doubt there is easily accesible information over whether German POWs did try to dispute their determination in our courts.

Second, you are probably right that many didn't, because it is obviously a non-start. However, if they did think it could work, it seems eminently reasonable for them to -- particurly for those captured earlier on in the war.Here's why. If you were fighting for your country, and could through legal processes challenge your capture and possible be set free to return and join with your comrades to fight again, wouldn't you? Granted, later on in the war, many Germans may have become disillusioned and may not have wanted to return. But early on before the inevitable spectre of defeat hung over them and for the die-hards, why wouldn't they want to return to fight for their country? I guess I consider the German people to have been considerably more nationalistic at that time than you do.

Perhaps I missed it, but where did the Boumediene v. Bush opinion hold that the detainees have no constitutional rights under the 5th and 6th Amendments? The only holding I read stated that the implied constitutional right to habeas corpus does not geographically reach Gitmo.

I cited to an article for my proposition. Please follow up on your research before asking people to provide more cites. Please also cite the provision of Geneva that says "if you do not fall under [POW or civilian] definitions, you are not under the protections granted ..." As to your request for citation, which you continuously fail to reciprocate, PMS_Chicago answers your question.

Also note the implications of your statement that "the government had tried them for crimes under a US military commission. In effect, the government brought these enemy belligerents under habeas corpus by bringing them into a criminal legal proceeding." This would mean that any suspected terrorists tried pursuant to the Military Commissions Act ("under a US military commission") would be eligible for habeas corpus. I'm glad you finally agree with me on this point!

You also misinterpret my argument about Nazi justice. You said that US soldiers behind enemy lines had "no trials and no habeas corpus," which I said was a feature of Nazi justice. Then you say that this was the US legal system at Nuremberg that had no trials and no habeas corpus. Non sequitur, as they say.

HLS,

First, I doubt there is easily accessible information over whether German POWs did try to dispute their determination in our courts.

This could be resolved with a West or Lexis search.

But early on before the inevitable spectre of defeat hung over them and for the die-hards, why wouldn't they want to return to fight for their country? I guess I consider the German people to have been considerably more nationalistic at that time than you do.

Soldiers understand that when they are detained as POWs they have no right to return. Such are the laws of war. The suspected terrorists are designated neither as POWs or civilians, so they are in an indeterminate legal zone. If the Germans had been held under executive detention without the protection of the Geneva Conventions, they surely would have challenged that detention. They had no reason to challenge that detention because they were captured soldiers who understood that they were POWs and understood that that determination meant they would be protected. By contrast, the suspected terrorists claim that they are not POWs, in some cases claim they have done nothing wrong, and either way are not protected under Geneva. See the difference?

Perhaps I should have been more specific. In my comments on that thread, there were citations from both the D.C. Circuit in this very case (Boumediene), as well as the Supreme Court in Rasul, in which the courts read the Schiever case to stand for an example where the English court granted habeas review to a prisoner of war, but denied relief on the merits. That goes to the question of the scope of common-law habeas jurisdiction adopted by inference in the Constitution.

So I think you would have an uphill swim trying to convince even the sympathetic D.C. Circuit, not to mention the Supreme Court, to change their minds in reading that precedent. I think Paul Clement knows better than to try, but by all means petition his political masters to insist upon it!

[Jao]: The distinguishing feature of the detainees today is that they are not conventional, uniformed combatants, and to the extent they are able many do deny that they are combatants at all.

This is nothing new. During WWII, we sent combatants dressed in civilian clothing behind enemy lines to kill Germans and sabotage the infrastructure. They were routinely and legally executed when captured. No trials and no habeas corpus.

I addressed this malarkey here (see also above in that thread). Here's the link for a tabular summary of incidents of "irregular" combatants (see table beginning on page 547).

"Bart" is of the opinion that the bar for behaviour should be set at the level of the Nazis and the Imperial Japanese in WWII (and even there, the evidence doesn't support his contention of "routinely" or "legally"). That's rather a low bar, in my humble opinion. But perhaps "Bart" has more fondness for Germanic "efficiency" than I do.

Then there's "Bart"'s typical presumption that even if these people claim they were not combatants, they're of course lying, because the preznit and his maladministration have said so.

Bart: I am unaware of any provision of the Geneva Convention which presumes a capture qualifies as a POW unless otherwise found. Can you cite to such a provision?

Yes. Article 5:...So, if the prisoner questions their status prior to a tribunal, they are protected. If a tribunal finds that they are not covered, they (under the MCA) can appeal that to the DC circuit, and then beyond to SCOTUS. I would argue that they are protected until all avenues of resolving "any doubt" have been exhausted. ;)

There is nothing in Article 5 which creates a doubt merely because an enemy combatant capture decides to challenge his detention.

Here are the applicable parts of Articles 4 and 5:

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war...

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war...

Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal

Doubt about whether a terrorist falls under one of the categories can be determined immediately upon capture.

Was the terrorist both wearing having a fixed distinctive sign recognizable at a distance and carrying arms openly? If the answer is no to either question, there is no doubt about whether he falls under the definition of Article 4.

Bart, I am unaware of any provision of the Geneva Convention which presumes a capture qualifies as a POW unless otherwise found.

Does any provision of the Geneva Convention permit the summary battlefield execution of anyone found fighting out of uniform, as you would favor, if you were king?

There is a good argument that the Geneva Conventions require some sort of a status hearing to determine whether the capture falls under the protections of the Geneva Convention. I would argue that such a determination can be performed rather quickly on the battlefield based on whether the Capture was wearing insignia and carrying a weapon. Once a determination is made that the Capture does not fall under the provisions of the Geneva Conventions, then I do not see how the Geneva Conventions would prevent an execution.

Bart, I cited to an article for my proposition. Please follow up on your research before asking people to provide more cites.

I do not care what a law review article claimed. I care what the Geneva Conventions actually provide. Since this war began, there has been a cottage industry among some lawyers, professors and unfortunately some judges to read into the Geneva Conventions things which are not actually written in that document.

Also note the implications of your statement that "the government had tried them for crimes under a US military commission. In effect, the government brought these enemy belligerents under habeas corpus by bringing them into a criminal legal proceeding." This would mean that any suspected terrorists tried pursuant to the Military Commissions Act ("under a US military commission") would be eligible for habeas corpus. I'm glad you finally agree with me on this point!

Quirin is quite clear on this point and it makes eminently reasonable sense. My argument has always been that foreign enemy combatants do not have habeas corpus rights to challenge their wartime detentions. Habeas corpus is meant for criminal justice matters, not to determine the status of prisoners of war.

hls, first of all, thank you for the kind words. I am happy to say I treat your posts the same way.

I've re-read your post. I take this passage to be the crux of the dispute:

Quirin does not state that the courts have the power to determine the legal status of an enemy combatant. It only decides the question of whether the executive branch had the power to make that determination.

As I understand your point, you say Quirin was limited to deciding that the executive could determine enemy combatant status. I believe the language I quoted refutes that point, though I probably should have included the previous paragraph.

The petitioners in Quirin challenged the use of a military tribunal to charge them, claiming they were entitled to a jury trial:

"Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses."

The Government denied that the Court had jurisdiction to consider this issue, asserting the petitioners' enemy combatant status as precluding any such argument. The Court specifically rejected the Government's argument. I'll quote again the passage I emphasized before (including the sentence I meant to include):

"But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission."

As I read the first sentence here, the Court said that the petitioners were entitled to challenge the fact that the Proclamation applied to them, i.e., they could challenge their status. I don't see any way to do that other than to have the Court determine whether they were, in fact, enemy combatants. While the Executive could make the initial determination -- and I agree that the Court clearly recognized the Executive's power to do so in the first instance -- the Court just as clearly reserved to itself the ultimate power to decide the issue. Thus, I don't believe Quirin supports your point.

The Geneva Conventions provide definitions for POWs and civilians. These definitions do not cover combatants who are not following the laws of was as laid out in the Geneva Conventions definition of POWs.

There is no Fifth Geneva Convention Relative to the Treatment of Unlawful Enemy Combatants.

Both the Third and Fourth Geneva Conventions cover what is permissible WRT violations of the "laws of war" by detainees (prisoners of war or civilians).

None of the Geneva Conventions use the phrase "unlawful combatant" or "illegal combatant", nor do they define (and exclude) such a category.

"We shall endeavour to explain later, when discussing Article 13, the sense in which "humane treatment" should be understood. The definition is not an easy one. On the other hand, there is less difficulty in enumerating things which are incompatible with humane treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions. The wording adopted could not be more definite: "To this end, the following acts 'are and shall remain prohibited at any time and in any place whatsoever...'" No possible loophole is left; there can be no excuse, no attenuating circumstances. Items (a) and (c) concern acts which world public opinion finds particularly revolting -- acts which were committed frequently during the Second World War...."

and we have this:

"As can be seen, Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally. In such a case, however, once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4. A.(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals."

I am unaware of any provision of the Geneva Convention which presumes a capture qualifies as a POW unless otherwise found. Can you cite to such a provision?

"Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

[Jao]: The distinguishing feature of the detainees today is that they are not conventional, uniformed combatants, and to the extent they are able many do deny that they are combatants at all.

"Bart" DePalma: This is nothing new. During WWII, we sent combatants dressed in civilian clothing behind enemy lines to kill Germans and sabotage the infrastructure. They were routinely and legally executed when captured. No trials and no habeas corpus.

arne: I addressed this malarkey here (see also above in that thread). Here's the link for a tabular summary of incidents of "irregular" combatants (see table beginning on page 547).

Do you read the documents to which you link?

I was referring to our personnel operating behind enemy lines in civilian clothing in the WWII Jedburgh teams and other similar commandos and how they could be legally executed if captured in civilian clothing.

Your first link is to one of your posts that disputes that US forces executed captured SS in our uniforms during the Ardennes Offensive.

The second is an article discussing whether it is a war crime under the GC for SF to wear civilian clothing. The only reference to the Jedburgh's noted that they attempted to wear their uniforms as much as possible.

[hip cat hobbes]: Bart, it is dangerous to start taking your cues on what process is due to enemy combatants from the Third Reich. Is that the direction you really want the U.S. justice system to go?

Actually, it was the US legal system at Nuremberg which is being implicated here. The Germans were not prosecuted for executing our unlawful combatants in the OSS and Jedburgh Teams because no law of war was violated in doing so.

Various Japanese swung from the gibbet because they had summarily executed soldiers hors de combat. Albeit these victims were uniformed at time of capture, the Japanese had a bad habit of thinking of such as "the devil" himself, in part for incendiary raids and other attacks killing civilians. I don't know of any that escaped punishment or were found "not guilty" because the prisoners were out of uniform when captured.

If you're talking about Nuremberg, care to cite an instance of a defendant there that had executed our 'unlawful combatants' "without trial", but who was let off for that reason you claim?

I have posted instances where the US executed unlawful enemy combatants. The point of this example is to show what is good for the goose is good for the gander.

One instance. Strangely enough, when the commanders went to trial, they were not executed. But that no prosecutions ensued for the executions is hardly an endoresement of the legality of the conduct.

[humblelawstudent]: But early on before the inevitable spectre of defeat hung over them and for the die-hards, why wouldn't they want to return to fight for their country? I guess I consider the German people to have been considerably more nationalistic at that time than you do.

Soldiers understand that when they are detained as POWs they have no right to return. Such are the laws of war.

The Geneva Conventions do specify the result that should apply. See, e.g., Article 4.

FWIW, if a prisoner escapes, they're still due the money owed them by the detaining power. See Article 66. ;-)

And see Article 91 et.seq for more on escapes.

The Conventions are well aware of the prospect of someone joining or rejoining the services of their country of allegiance, and they do not make such rejoinder a punishable offence. In fact, they kind of expect it and protect it.

Doubt about whether a terrorist falls under one of the categories can be determined immediately upon capture.

LOL. See below. "Bart"'s drinking before noon again, it seems.

Was the terrorist both wearing having a fixed distinctive sign recognizable at a distance and carrying arms openly? If the answer is no to either question, there is no doubt about whether he falls under the definition of Article 4.

So you slept wid' yer boot on, eh, "Bartster"? Or does the "I love fascism" tattoo on your buttocks count as "distinctive insignia"?

I'd venture to say that the "doubt" can't always be so easily resolv... -- uhhh, OK, it can be easily "determined" at least in some circumstances. Resolution of said doubt is a different creature....

Notice the "framing": "Bart" uses the word "terrorist" above to try and put in your head a mind-set that presupposes (or preinclinates) the conclusion he wants you to reach. It works for the rubes, "Bart", teh 25 percenters, the "dead-enders" sucking the hind teat of Dubya. Not for people who think.

There is a good argument that the Geneva Conventions require some sort of a status hearing to determine whether the capture falls under the protections of the Geneva Convention. I would argue that such a determination can be performed rather quickly on the battlefield based on whether the Capture was wearing insignia and carrying a weapon. Once a determination is made that the Capture does not fall under the provisions of the Geneva Conventions, then I do not see how the Geneva Conventions would prevent an execution.

Many of the detainees in Guantanamo were rounded up by Afghan warlords and/or others (under unknown circumstances), and turned over to the U.S. forces far from the 'battlefield', for bounties.

Not to mention the fact that, in that part of the world, uniforms were not the first order of business, and firearms rampant regardless of affinity or occupation (in addition, U.S. SO forces adopted the "uniforms" of the locals, in part so they couldn't be singled out by snipers).

If summary execution is the official penalty for fighting "out of uniform" (as "Bart" falsely contends), this result could hardly pertain.

I'd note that this "Table of Historical State Practice" which "Bart" references lists dozens of incidents of such "unlawful combatant" actions ... and, with the exception of two cases of Nazi executions and one Japanese one (hardly a laudable standard for our behaviour), there is just this one incident of such summary executions.

How is that "disput[ing] that US forces executed captured SS in our uniforms during the Ardennes Offensive"?

There is a good argument that the Geneva Conventions require some sort of a status hearing to determine whether the capture falls under the protections of the Geneva Convention. I would argue that such a determination can be performed rather quickly on the battlefield based on whether the Capture was wearing insignia and carrying a weapon. Once a determination is made that the Capture does not fall under the provisions of the Geneva Conventions, then I do not see how the Geneva Conventions would prevent an execution.

Arne is quite right in his comment. You are presupposing a prisoner captured in actual combat, leaving no doubt about his status as a belligerent. Many of the detainees at GTMO were not taken in combat, but handed over to us by bounty hunters, so the fact that they were not wearing insignia or carrying weapons is hardly dispositive as to whether they were combatants.

What type of procedure would you require before execution in the case of an alleged terrorist turned over to us by bounty hunters?

HLS says: I just wonder if any of the Professors think that the German and Italian soldiers we held on our soil during WW2 had a right to habeus corpus to challenge their detention because they were being detained on sovereign US soil.

You raise a very good question. In fact, in the case of Rex v. Shiever (which the Boumeidene Court discusses), a Swedish sailor was detained as a POW in an English jail. He filed a petition for writ of habeas corpus, and it was granted, but the court found on the merits that there was sufficient evidence to conclude that Schiever was properly categorized as a POW. The Boumeidene Court distinguished that case on the grounds that Shiever was held on English soil and therefore entitled to habeas corpus (in contrast to the GTMO detainees).

So under Schiever, it would seem that POWs detained in the US would have the right to petition for habeas corpus to challenge their POW status. In practical terms, however, I believe it is unlikely that a US court would entertain habeas petitions from thousands of POWs. Whether that is principled is another question. One distinction a court might point to is that under modern laws of war, POWs must be repatriated once hostilities cease. Not so with alleged unlawful combatants such as the GTMO detainees, who may be imprisoned under criminal law after a status hearing. (although you correctly point out that a long war could lead to long detention--in that case, international diplomacy and a prisoner exchange might be the POW's best bet). Furthermore, if Bart is right and it is permissible to execute unlawful enemy combatants on the basis of a status hearing, then obviously the interest in applying habeas corpus in the case of alleged unlawful combatants is stronger than in the case of POWs.

Bart says: "Doubt about whether a terrorist falls under one of the categories can be determined immediately upon capture.

Was the terrorist both wearing having a fixed distinctive sign recognizable at a distance and carrying arms openly? If the answer is no to either question, there is no doubt about whether he falls under the definition of Article 4."

The trouble with trying to call Guantanamo Bay detainees terrorists, is that very few of them are. Take Hicks from Australia. He is accused of showing up to volunteer for one militia in the Afghani civil war, Al-Qeada, in support of the Taliban, after which the U.S. suddenly moved in and took sides in this Civil War.

What terrorist means did he have? He was issued a rifle and grenades.

You don't issue a terrorist a rifle and grenades and send him to a battlefield. You issue a terrorist an explosives belt or bomb filled car and point him towards the nearest vegetable market or mosque.

Likewise, chauffers of someone locally organized as a military force in a civil war are not terrorist supporters. It isn't a war crime to be a camp follower for someone whom you know as the warlord de jure.

The notion that one can equate "terrorist" and "irregular militiaman" invites sloppy thinking. Only a few dozen of the people in Guantanamo Bay fit any meaningful definition of the term terrorist.

One of the other confounding forces of doubt at Guantanamo Bay is that unlike the paradigmatic POW, a large number of them were seized by bounty hunters and then, much later, detained by the U.S. solely on the strength of the bounty hunter's anonymous and often made up stories coroborrately more or less entirely by the fact that these individuals were male foreigners in a war torn country. This is a stark contrast to detainees in the early days of Gulf War I and the current Iraq War, where a U.S. company of soldiers would overwhelm an Iraqi unit, accept surrenders and detain them, or the example of World War II or the U.S. Civil War.

You can be far more sure about the status of hundreds of thousand of people of people detained in battlefield surrenders and captures, than you can about a much smaller number of people whose status is determined by far less reliable means.

Also, Geneva calls for a distinguishable sign, not a uniform per se. People are not entitled to fewer rights simply because U.S. soldiers aren't as savy at grocking their opponent's fashion sense. The U.S., for the most part, doesn't even know what these people were wearing or doing when originally detained by third parties.

Bart: There is a good argument that the Geneva Conventions require some sort of a status hearing to determine whether the capture falls under the protections of the Geneva Convention. I would argue that such a determination can be performed rather quickly on the battlefield based on whether the Capture was wearing insignia and carrying a weapon. Once a determination is made that the Capture does not fall under the provisions of the Geneva Conventions, then I do not see how the Geneva Conventions would prevent an execution.

You are presupposing a prisoner captured in actual combat, leaving no doubt about his status as a belligerent.

The OSS Jedburgh teams which I were discussing were battlefield captures and I answered the question posed to me under that scenario.

Many of the detainees at GTMO were not taken in combat, but handed over to us by bounty hunters (sic), so the fact that they were not wearing insignia or carrying weapons is hardly dispositive as to whether they were combatants.

What type of procedure would you require before execution in the case of an alleged terrorist turned over to us by bounty hunters?

Under criminal law, an arresting police officer is generally authorized to arrest a person based on the observations of a third party police officer or civilian. The situation is not too different here.

The receiving military unit is properly relying initially upon the observations of our Afghan military allies or civilians to make the initial status determination that the Capture was a combatant.

I imagine we relied upon the reports of other foreign troops who fought with us in a variety of previous wars concerning the combatant status of the captures which they turned over to us. However, I would have to do some research to make sure.

There are no allegations that the Afghans stripped these captures out of their military uniforms and put them in civilian clothing, so Captures presented in civilian clothing can reasonably be assumed to be an unlawful combatants.

However, under circumstances where our troops did not make the capture, I personally do not think our troops should be able to take any punitive actions against the Capture like execution. If I were "king," I would pretty much do what the we are doing now - conduct follow on interrogations of the Capture to gather more facts on his status and any intelligence he may possess. I am unsure what the law of war would say under those circumstances, but that is how I would proceed.

I disagree with one of the prior posts that we should assume that a Capture who fits none of the criteria of a GC POW should be assumed to be such and afforded those rights.

Since everyone else is offering their previous two cents on Schiever, you can find the reporter summaries of the King's Bench decisions in Schiever and Three Spanish Sailors and my analysis at my blog here and here.

In sum, the King's Bench held that neither habeas corpus nor any other rights of Englishmen were extended to these foreign POWs. The Gitmo detainees misrepresent these decisions as a review of whether the King properly designated these petitioners as POWs. In fact, the petitioners never made such an argument nor did the King's bench sua sponte make such a substantive review.

"Doubt about whether a terrorist falls under one of the categories can be determined immediately upon capture.

Was the terrorist both wearing having a fixed distinctive sign recognizable at a distance and carrying arms openly? If the answer is no to either question, there is no doubt about whether he falls under the definition of Article 4."

So the logic of this argument is:

1. Assume every captured person=terrorist2. Look for openly carried arms and identification.3A. If openly armed and identified, person=POW3B. If not openly armed and identified, person=terrorist4. Therefore, anyone who is not carrying arms openly or not wearing identification is a terrorist and not entitled to protection under the Conventions.

The problem with this logic is that you are assuming that any captured person is a terrorist, and then looking for evidence to demonstrate that the captured person is not a terrorist. Worse, the absence of such evidence is taken to mean that the person is not entitled to convention protections, while the possibility exists that the captured person is not a combatant at all, and therefore by all rights maximally entitled to protection.

Capturing someone and assuming them to be a terrorist in the absence of any exculpatory evidence is exactly what is wrong with the Conservative view of prisoners taken during war. It would be far better to assume that the captured person is either a POW entitled to full protections of the Conventions or an innocent captive and then strip those protections after demonstrating that they are a "terrorist" rather than to assume that they are a "terrorist" and offer Convention protection only to those captured who can provide evidence of their non-terroristness.

A system which relies on the captured to prove their innocence/legality while undergoing systematic torture and privation at the hands of their capturers is not only fundamentally unjust, but also flawed by design.

Bart: The Gitmo detainees misrepresent these decisions as a review of whether the King properly designated these petitioners as POWs.

Confusing denial of relief with denial of review, Bart deliberately fails to note that the Supreme Court of the United States and the D.C. Court of Appeals similarly "misrepresent" precedent.

1) The Supreme Court in Rasul cited the Schiever case to stand for this: "(reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France)."

2) The D.C. Circuit opinion in Boumediene said matter-of-factly about Schiever: "The court denied him relief because it found ample evidence that he was a prisoner of war."

I invite anyone to read the reports on the cases themselves. They can form their own opinion about who "misrepresents" them here -- the federal courts, or Bart.

Bart: "Doubt about whether a terrorist falls under one of the categories can be determined immediately upon capture. Was the terrorist both wearing having a fixed distinctive sign recognizable at a distance and carrying arms openly? If the answer is no to either question, there is no doubt about whether he falls under the definition of Article 4."

The problem with this logic is that you are assuming that any captured person is a terrorist, and then looking for evidence to demonstrate that the captured person is not a terrorist...Worse, the absence of such evidence is taken to mean that the person is not entitled to convention protections, while the possibility exists that the captured person is not a combatant at all, and therefore by all rights maximally entitled to protection.

Let's stop right here. The issue I was addressing was determining whether a capture who was already identified as a combatant qualified as a POW under the Geneva Conventions.

You are raising a new issue of whether the Capture was a combatant or a civilian, which is addressed in other sections of the GC.

A system which relies on the captured to prove their innocence/legality while undergoing systematic torture and privation at the hands of their capturers is not only fundamentally unjust, but also flawed by design.

The Detainee Treatment Act requires the military to prove by a preponderance of the evidence that the Capture is a combatant.

The discussion we were having was whether the GC required the military to assume that a combatant qualified as a POW under the Geneva Conventions when there was no evidence that he fit the definition of a POW given by the GC. This discussion assumes that the military has evidence that the Capture is a combatant in the first instance.

I've looked at the posting provided that purported to contain Rex v. Schiever. Well, the opinion posted doesn't appear to be complete. The district court case in Hamdan v. Rumsfeld cites the case and includes a quote from the case, “[petitioner] is the King's prisoner of war, and we have nothing to do in that case, nor can we grant an habeas corpus to remove prisoners of war.” I can't find this passage anywhere in the posted material purporting to be the opinion (obviously without the bracketed portion).

Anyone have a link to the actual opinion? We only seem to be getting bits and pieces.

You claim that I misrepresented the Schiever and Three Spanish Sailors cases. Feel free to back up your claim by showing everyone from the reporter summaries of the Schiever and Three Spanish Sailors cases where the petitioners asked the Court to determine if the King properly designated them as POWs or where the Court sua sponte made such substantive review. If you cannot do so, then feel free to apologize for the slander.

You also claim that two recent courts disagree with my interpretation of Schiever. This is also incorrect. Neither of these Courts claimed that Schiever asked the King's Bench to determine if the King properly designated them as POWs or that the King's Bench sua sponte made such substantive review.

1) The Supreme Court in Rasul cited the Schiever case to stand for this: "(reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France)."

All the Supreme Court notes here is that the King's Bench read the Schiever petition. Even in cases where (as here) the court summarily denies a petition for lack of standing, the judge will first read the petition.

2) The D.C. Circuit opinion in Boumediene said matter-of-factly about Schiever: "The court denied him relief because it found ample evidence that he was a prisoner of war."

Schiever reported that he was being held as a POW in his petition. That was all the King's Bench needed as evidence before dismissing his petition. There is no evidence that the King's Bench did more than read the petition, judicially recognize that the petitioner was a POW and then summarily dismiss the petition. Schiever asked to appear before the court to give evidence to support his petition and was denied.

I've looked at the posting provided that purported to contain Rex v. Schiever. Well, the opinion posted doesn't appear to be complete...Anyone have a link to the actual opinion? We only seem to be getting bits and pieces.

These are 18th century cases and the reporters only provide summaries. There does not appear to be written opinions by the King's Bench for these cases.

I obtained pdfs of the reporter entries while on a free introductory membership with juris.com, a database for UK law. There are no free links of which I am aware, but you can probably get a free intro membership as well.

["Bart"]: There is a good argument that the Geneva Conventions require some sort of a status hearing to determine whether the capture falls under the protections of the Geneva Convention. I would argue that such a determination can be performed rather quickly on the battlefield based on whether the Capture was wearing insignia and carrying a weapon. Once a determination is made that the Capture does not fall under the provisions of the Geneva Conventions, then I do not see how the Geneva Conventions would prevent an execution.

[enlightened layperson]: You are presupposing a prisoner captured in actual combat, leaving no doubt about his status as a belligerent.

The OSS Jedburgh teams which I were discussing were battlefield captures and I answered the question posed to me under that scenario.

Guess I missed the part in the Geneva Conventions where it says that battlefield detainees hors de combat could be summarily shot on "determination" of a battlefield commander. Which article was that?

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

[Enlightened Layperson]: What type of procedure would you require before execution in the case of an alleged terrorist turned over to us by bounty hunters?

Under criminal law, an arresting police officer is generally authorized to arrest a person based on the observations of a third party police officer or civilian. The situation is not too different here.

There are no allegations that the Afghans stripped these captures out of their military uniforms and put them in civilian clothing, so Captures presented in civilian clothing can reasonably be assumed to be an unlawful combatants.

As a non-lawyer, it strikes me that allowing the executive to be judge, jury and executioner is a recipe for tyranny. However, the kind of legal hairsplitting in trying to resolve the problem seems like an arcane theological dispute between medieval scholastics.

The problem is how to retain some semblance of due process and the rule of law when the old distinctions between combatants, non-combatants, and notions of war between belligerent states don't work any more.

I understand the desire to find a workable precedent but how far does one go before deciding to rethink the due process issues from scratch?

The Detainee Treatment Act requires the military to prove by a preponderance of the evidence that the Capture is a combatant.

No. This is a limitation on the scope of review by the DC Circuit Court of Appeals:

"(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); ..."

This assumes (but does not require) that the "standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals" have such a requirement.

I'd also note that "preponderance of the evidence" here can be a "preponderance of the gummint's evidence"; there is no requirement that anyone else's evidence even be considered. And, voila!, if you look only at the gummint's evidence, what to you think a preponderance of that would show?

Detainees may call witnesses "if reasonably available". (g)(8). But they don't necessarily get to know (or find out) who the "witnesses" to call are, nor are they guaranteed such witnesses. The tribunal gets to say who's "reasonably available". If the witnesses are from the U.S. Arfmed Forces, "they shall not be considered reasoanbly available if, as determined by the commanders, their presence at a hearing would affect combat or support operations." Loophole big enough to drive a truck bomb through.

They are allowed to "question those witnesses called by the tribunal." (g)(8). But the gummint doesn't have to have all (or any) of their witnesses show up at the tribunal.

While the gummint is apparently permitted to present "documentary evidence", (g)(3), there's no provision for questioning the authenticity and accuracy of the "documentary evidence.

While the detainees are allowed to present "documentary evidence" (g)(10), there's no documentary subpoena power available to the detainees.

All the above is conditional on "national security" interests; if such are claimed, the detainee is SOL (see, e.g. (g)(13)).

And evidence obtained under coercion [spelled "torture" in English] is permitted under the DTA, with the caveat that the CSRT should assess the "probative value" of any evidence ... "to the extent practicable". Of course, assessing the "probative value" of evidence is just what any run-of-the-mill jury does.

Under such circumstances, a "preponderance of [mainly, if not totally, the gummint's] evidence" is a sham.

You pose a straw man. In order to see that review occurred, it is not necessary for the petition to have taken the precise form you conjure out of thin air.

As you note, we do not have the text of his petition, but Schiever certainly did petition for relief, which was denied on the merits. His claim was that, although he did serve on the privateer, the court should free him because he had been coerced to do so by being impressed off another ship. The record shows that the court considered not only his sworn statement but that of another witness, who said Schiever had been coerced. However, after this review, the court was unpersuaded by that theory.

(As an aside, I doubt that even today, if a POW argued that he deserved legal release because he had been drafted, a court would comply. A conscript captured under arms is still a soldier. But in any event, that would be a merits issue.)

What the court did not do was take the Crown's word for Schiever's status and refuse to commence review and examine the facts and the arguments. Rather it reviewed the merits of the evidence and Schiever's argument and concluded that that "on his own shewing" he was a prisoner of war.

Bart: You also claim that two recent courts disagree with my interpretation of Schiever. This is also incorrect.

So then you actually agree with our courts that the Schiever court was "reviewing the habeas petition" and "denied him relief because it found ample evidence that he was a prisoner of war?"

That is all that is required to establish precedent that habeas jurisdiction existed in this case, and review was exercised.

Bart: You claim that I misrepresented the Schiever and Three Spanish Sailors cases.

To the contrary, I merely invited readers to examine the record and form their own opinions.

Your original assertion was that "the Gitmo detainees misrepresent these decisions as a review of whether the King properly designated these petitioners as POWs."

The D.C. Circuit said that "the court denied [Schiever] relief because it found ample evidence that he was a prisoner of war," in a process the Supreme Court called "reviewing the habeas petition."

Bart: There is no evidence that the King's Bench did more than read the petition, judicially recognize that the petitioner was a POW and then summarily dismiss the petition.

The court not only read the petition, but also the sworn statements of Schiever and another witness. According to the D.C. Court of Appeals reading, the Schiever court "found" that these comprised "ample evidence" for a ruling that "denied him relief."

No court can "find evidence" and "deny relief" in a case without deciding as a threshold matter to accept jurisdiction and commence review. That is all that is at issue in the matter of today's controversy.d

As you note, we do not have the text of his petition, but Schiever certainly did petition for relief, which was denied on the merits. His claim was that, although he did serve on the privateer, the court should free him because he had been coerced to do so by being impressed off another ship.

Here is the complete summary of the legal argument made by Schiever's barrister:

Mr. Stowe urged that it would be very hard upon this man, to be kept in prison here, until exchanged by cartel; and then sent back to France, where he would be forced into their service again.

This is a plea for mercy on equitable grounds and does not request or imply in any way that the King's Bench determine whether the King properly designated Schiever as a POW. That point was essentially conceded by silence.

The record shows that the court considered not only his sworn statement but that of another witness, who said Schiever had been coerced. However, after this review, the court was unpersuaded by that theory.

We all agree that the King's Bench read Schiever's petition and supporting affidavit. This fact proves nothing. I am unaware of any Anglo-American court which has declined to read a petitioner's pleadings before dismissing any sort of action including habeas corpus based on lack of standing to bring the action. Indeed, it impossible to know the petitioner lacks standing without doing so.

What the court did not do was take the Crown's word for Schiever's status and refuse to commence review and examine the facts and the arguments.

Precisely. This is yet more evidence that the Court did not make sua sponte review of whether the King properly designated Schiever as a POW. The records do not indicate that the Court asked the Crown for a response. Rather, it summarily dismissed the petition after reading it. Have you ever heard of a Court performing habeas corpus review without asking the Crown to provide the factual and legal basis for the detention???

Rather it reviewed the merits of the evidence and Schiever's argument and concluded that that "on his own shewing" he was a prisoner of war.

Here is the sum total "shewing" offered by Schiever's affidavit concerning his POW status:

That the said last mentioned brig was, in going to Norway, re-taken by the 'Fame' letter-of-mark [sic] ship, and carried into Liverpool: where this Barnard Schiever was sent to the town-gaol of Liverpool, as a prisoner of war, under the custody of the said Richard Rigby keeper of the said gaol; and is now, and ever since has been detained there for no other cause than the cause aforesaid.

This is a simple report that the Crown is holding him as a POW. There is no contention at all that the Crown's designation was illegal. None. All the King's Bench needed to deny his petition is to hear that Schiever was being held as a POW.

However, I am getting tired of arguing over what we call the action of the King's Bench. If you want to call what the King's Bench did a "habeas corpus review" and insist that the Gitmo detainees have a right to the same review, then I surrender and concede your point. You win.

The federal district court reviewing the Gitmo detainees' petitions should henceforth read the Gitmo petitioners' pleadings reporting that the military is holding them as enemy combatants, find that the petitioners "upon their own shewing, are enemy aliens and prisoners of war," and then summarily dismiss the petitions because the Gitmo detainees are "therefore not entitled to any of the privileges of [Americans]; much less to be set at liberty on a habeas corpus."

There, you have your "review."

Now, can we go back to quibbling about the really major issues like whether George Bush "improperly" fired or appointed some subordinate? That really gets the blood flowing!

"Rex v. Barnard Schiever, a Swede. 1759. Hab. corp. for a prisoner of war taken on board an enemy's prize ship denied.

"Mr. Stowe moved for a habeas corpus to be directed to Richard Rigby, keeper of the town-gaol of Liverpool, to bring up the body of Barnard Schiever, a subject of a neutral power, taken on board of an enemy's ship; but forced, as it was alledged, [sic] into the enemy's service.

"The substance of the affidavit upon which he grounded his motion, was, that this Barnard Schiever was born in the dominions of the King of Sweden: and his father was now in that King's service. That this Barnard Schiever, being bred to the sea, and understanding navigation, was desirous of entering into the service of the merchants of England; and for that purpose and for no other design or intent whatsoever, shipped himself as a passenger from Gottenburg to Elsineur, in order there to enter on board some English merchant's ship. That when he arrived at Eslineur, he applied to the English consul there, who shipped him, as a mariner, on board an English merchant's vessel bound on a voyage from Hill to Dublin; with which ship he set sail. That in prosecuting the said voyage, in the said ship, he was taken by a French privateer, and carried into Norway; where there was another privateer. That he, together with all the prisoners taken on board the English vessel, were put on board the latter privateer, called the "Mareschal de Bellisle," Captain Thurot commander. That the day after he was removed into the "Bellisle," the English prisoners were, by the command of Captain Thurot, set ashore at their liberty: but all the persons belonging to the said English vessel, who were the subjects of neutral powers, were detained to serve on board the said privateer, (the "Bellisle"). Upon which this Schiever applied to Captain Thurot to set him ashore likewise; alledging [sic] 'he was intitled [sic] to his liberty as being a neutral person.' But Thurot told him 'that for that reason he should not go on shore: for that he might as well serve him, as serve the English; and that he would make him serve him;' or words to that effect. And accordingly Thurot detained him, against his will and inclination on board of the said 'Mareschal de bellisle,' privateer, and treated him with so much severity, that he would not suffer him to go on shore when in port, upon his necessary occasions; but closely confined him to duty, on board the said privateer. That the said privateer commanded by Thurot, being on a cruise, took two little brigs: on board of one of which, this Schiever, with some others, were put, with orders from Thurot 'to navigate the said brig into any harbour in Norway.' That the said last mentioned brig was, in going to Norway, re-taken by the 'Fame' letter-of-mark [sic] ship, and carried into Liverpool: where this Barnard Schiever was sent to the town-gaol of Liverpool, as a prisoner of war, under the custody of the said Richard Rigby keeper of the said gaol; and is now, and ever since has been detained there for no other cause than the cause aforesaid. Schiever swears that his intention still is (could he obtain his liberty) to enter as a mariner into the English merchants service: and that he would not nor should have served on board the said privateer, had he not been forced thereto and detained as aforesaid by the said Captain Thurot.

"One Oluf Grundell, who was on board the ‘Bellisle’ privateer when Schiever was put on board of it, swears that Schiever was forced against his inclination, by Captain Thurot, to serve on board of it, in the manner Schiever has above deposed; and that all the persons taken in the said vessel, belonging to neutral powers, were forced by Thurot, in the like manner, to serve on board the said privateer.

"[*552] Mr. Stowe urged that it would be very hard upon this man, to be kept in prison here, till exchanged by cartel; and then sent back to France, where he would be forced into their service again."

Rex v. Barnard Schiever, a Swede. 1759. 97 Eng. Rep. 551

We don't knwo what the "complete legal argument" was, not being privy to the discussion at court.

BTW, I have searched in vain in the report of the case to find where the court took "judicial notice" of Schiever's status, which you repeatedly represent to have been the case. Could you provide the relevant quotation in context?

Otherwise, I must assume this is Just Bart Making Stuff Up, and the D.C. Circuit was right when it said the Schiever court "found ample evidence" and "denied him relief."

Bart: You also claim that two recent courts disagree with my interpretation of Schiever. This is also incorrect.

Me: So then you actually agree with our courts that the Schiever court was "reviewing the habeas petition" and "denied him relief because it found ample evidence that he was a prisoner of war?"

I'm waiting for an answer. Yes or no.

Good heavens, which part of "there is no conflict" is confusing to you? The short answer is yes.

BTW, I have searched in vain in the report of the case to find where the court took "judicial notice" of Schiever's status, which you repeatedly represent to have been the case. Could you provide the relevant quotation in context?

Judicial notice is simply the court accepting an adjudicative fact which is not in reasonable dispute as true.

Schiever admitted that he was being held as a POW and did challenge that status. There was no dispute over that fact. In their holding, the King's Bench accepted that fact as dispositive in dismissing Schiever's habeas corpus petition. This is the epitome of judicial notice of a fact.

The fact that the reporter summarizing this 18th century case did not use our term of art hardly means that the King's Bench did not perform the act of judicial notice.

Well, we finally have consensus about the key fact that an English common law precedent stands for habeas review for an alleged war prisoner. The Supreme Court has read it that way; the D.C. Circuit has read it that way; the solicitor general has never contested that reading; and now even Bart reads it that way.

Thus, we are back to where the comments in this thread began: The biggest barrier to habeas review for the Guantanamo detainees is the naval base's geographic status as a law-free zone -- as long as it lasts. That is what the D.C Circuit and the administration have hung their hats on.

Of course, in the Military Commissions Act, Congress purported to strip habeas jurisdiction from alleged alien "enemy combatants" regardless of geography. And, of course, detainees will continue to argue when they can that the MCA provision violates the Suspension Clause.

The outlook for resolution of the big legal question -- habeas or no habeas? -- depends primarily on whether and when a case will present that question without the government hiding behind geography. The more legitimate question is whether the military CSRT process, and the limited review of that process specified by statute, provide an acceptable alternative to habeas review in an Article III court.

The last sentence in my previous was poorly worded. There is certainly a legitimate question about habeas. But the question of whether the CSRT process is an acceptable alternative is more interesting, and seems more likely to be where the controversy evolves.

The last sentence in my previous was poorly worded. There is certainly a legitimate question about habeas. But the question of whether the CSRT process is an acceptable alternative is more interesting, and seems more likely to be where the controversy evolves.

While CSRT determinations are definitely an "inconvenience" -- to say the least -- to those that are "determined" to be properly held as "unlawful enemy combatants" but who may contest that determination or the process, a more grave injury on a wrongful determination may ensue if they are subsequently charged with crimes. The MCA prescribes military commissions, with markedly reduced legal defences and resources, for those held after CSRTs: A CSRT decision is determinative as to whether trial will be by military commission (MCA § 948d(c)).

One could say that the sections of the Geneva Conventions as to combatant status review, requiring only a hearing, don't require the full panoply of "all the judicial guarantees which are recognized as indispensable by civilized peoples", so that the lack of a lawyer (for instance) is no great shakes. But because this hearing results in a status that deprives them of other rights (such as right against self-incrimination, to compel witnesses, to see the evidence against them, and the right to a lawyer of their choice), one might argue that the two types of hearing are really only parts of one and the same process (which, of course, is what is happening to people like Hicks).

This would more strongly for involvement of basic constitutional protections against unlawful detention and punishment.

Mnay of the Gitmo prisoners have been released without charges over the last few years.

Clearly they weren't terrorists, or we'd continue to keep them. But we did detain them and toruture them.

Is there a worry here that if some legal status is defiend for the detainees, then those released could seek redress for the crimes committed against them?

Many of these people were captured as part of a bounty program where the US was offering One Million Dollars each for Al Queada operatives. If such a bounty program were offered in the US, we'd probably find hundreds of thousands of Al Queada operatives.

Do you know anyone that would betray a fellow human being for one million dollars?

I am not a lawyer so I can't participate in the most of the intellectual jousting here.

Might I suggest however that the real meaningful distinction between WW2 prisoners housed in the US and those housed in Guantanamo is in their treatment. This is a shameful difference and a moral outrage.

Almost 79000 German and Italian POWS were housed in Texas. Here is a description of their treatment. "What a falling off was there".

http://www.epcc.edu/nwlibrary/borderlands/12_german_prisoners.htm

"When the first enemy prisoners started arriving in the States, they did not know what to expect. What they found amazed them: clean barracks, good health care, canteens full of consumer goods not seen in Europe in years and food so plentiful that they wrote their families to stop sending gift parcels. Such treatment soon stirred the American press and Congress to criticize the War Department for pampering the enemy, but the War Department defended its policy by pointing out the strategic reward of treating prisoners well: enemy troops were surrendering."

"With regard to prisoners, the U.S. strictly followed the rules of the Geneva Convention."

"Even though the prisoners worked hard, they had a great deal of free time. Generally they had many activities to occupy that spare time. Sports, painting and gardening were some of the more popular activities. Some of the prisoners showed more of an interest in academics, and they attended classes in the barracks and recreation rooms of the camps. Prisoners took classes in everything from chemistry and physics to American government, English language and journalism. These classes were taught by German prisoners who had been school teachers and professors before the war."

"Some prisoners detained at Fort Bliss were able to attend classes, under guard, at the Texas College of Mines, now the University of Texas at El Paso. On May 19, 1944, the Reich Ministry of Education offered full high school and university credit for courses taken by German prisoners in the United States."

In case anyone is still watching this thread, the D.C. Circuit just reviewed the petition of an "enemy" U.S. citizen being held by the U.S. army but sentenced to death by an Iraqi court. After looking at their jurisdiction to hear the petition, they denied further review. Jurisdiction did not exist because he was convicted by an Iraqi court, whose decision is not reviewable in U.S. courts. This fact is dispositive under the framework established by Hirota v. MacArthur, 338 U.S. 197 (1948), Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), and Omar v. Harvey, No. 06-5126 (D.C. Cir. Feb. 9, 2007). Neither the fact that he is being held in Iraq, nor the fact that he is a U.S. citizen, is dispositive for the holding.

The Court hints that "if the [Iraqi] charges were dismissed, and United States forces were to continue to hold Munaf, this would be a different case. Under Omar the district court arguably would have jurisdiction over Munaf's habeas claim." Slip op. at 5. Think about what this means: if the only government exercising its control and authority over Munaf were the United States, he could pursue a habeas claim on the merits, even though held in Iraq.

Bart's vision of a robustly activist court continues to fail to take hold in any U.S. court on detainee treatment issues. The D.C. Circuit failed to take "judicial notice," and failed to adopt the argument "I say--without having to prove anything--that you are an enemy combatant, so therefore you have no rights."